Dunklin v. Hanna

• Decision Date: 17 May 1934
• Docket Number: 2 Div. 39.
• Citation: 156 So. 768,229 Ala. 242
• Parties: DUNKLIN v. HANNA.
• Court: Alabama Supreme Court

156 So. 768

229 Ala. 242

DUNKLIN v. HANNA.

2 Div. 39.

Supreme Court of Alabama

May 17, 1934

Rehearing Granted Oct. 4, 1934.

Appeal from Circuit Court, Perry County; John Miller, Judge.

Action for damages for personal injuries by Edward Burnett Dunklin against Robert C. Hanna. From a judgment for defendant plaintiff appeals.

Affirmed on rehearing.

BROWN J., dissenting.

Arthur W. Stewart and Judson C. Locke, both of Marion, and Pitts &amp Pitts, of Selma, for appellant.

Frank Gordon, of Marion, and S. F. Hobbs, of Selma, for appellee.

BROWN, Justice.

This is an action on the case by the appellant against the appellee for damages for personal injuries which plaintiff alleges he received in consequence of the negligence of the defendant in the operation of an automobile in which both of the parties were traveling from Selma to Marion, Ala. The complaint consists of two counts, in substance and legal effect the same, alleging that plaintiff was a passenger of the defendant who owned and operated the automobile. The defendant pleaded, in short by consent, the general issue and contributory negligence.

Under the evidence, both the question of negligence on the part of the defendant and contributory negligence on the part of the plaintiff were for the jury. If, as some phases of the evidence go to show, the plaintiff, at defendant's request, undertook to aid the defendant in the operation of the automobile by keeping a lookout and keeping the defendant posted as to their whereabouts as they proceeded, and plaintiff negligently failed to do so and this proximately contributed to his own injury, this would bar his right to recover. McGeever v. O'Byrne, 203 Ala. 266, 82 So. 508.

If it should be conceded that the doctrine of assumption of risk is applicable to a case of this character, a matter of serious doubt (5 C.J. pages 142, 143; Shelby Iron Co. et al. v. Cole, 208 Ala. 657, 95 So. 47; Kansas City, Memphis & Birmingham Railroad Co. v. Flippo, 138 Ala. 487, 35 So. 457; Melton v. Birmingham Railway Light & Power Co., 153 Ala. 95, 98, 45 So. 151, 16 L. R. A. (N. S.) 467; Bierley v. Shelby Iron Co., 208 Ala. 25, 93 So. 829; McGeever v. O'Byrne, supra), under the pleadings and evidence it was not applicable to this case as presented in the trial court. There was no intimation in the agreement to plead in short that any such defense would be put forward, and there was no evidence showing or tending to show any defect in the automobile or the brakes, or, if there was, that the plaintiff had any knowledge thereof.

As was observed in McGeever v. O'Byrne, 203 Ala. 266, 269, 82 So. 508, 511, "The phrase 'assumption of risk' is, however, sometimes loosely applied to cases where there was no contractual relation between the plaintiff and the defendant, but that use of the phrase 'must be confined to cases where the plaintiff knew and appreciated the danger and voluntarily put himself in the way of it."' Charge 2, given at defendant's request, pretermits such knowledge, and, besides being inapt and misleading, is unsound, and the court erred to reversal in giving said charge.

While charge 1 given at the instance of the defendant appears to have been carelessly drawn, it is not inherently erroneous.

The other questions argued have been considered, but we deem it unnecessary to treat them; they are without merit.

Reversed and remanded.

GARDNER, THOMAS, and KNIGHT, JJ., concur.

On Rehearing.

PER CURIAM.

If the evidence was sufficient to reasonably satisfy the jury that the hypothesis of charge 2 was true, and the condition so hypothesized was the proximate cause of plaintiff's hurt, the defendant was not guilty of actionable negligence, and the concluding expression in the charge, "* * * then Mr. E. Burnett Dunklin must be held to have assumed the risk of injury proximately caused by such latent defect, and could not legally recover anything of Dr. Hanna," though unsound, may be treated as surplusage, and the giving of the charge does not constitute reversible error.

The rehearing is therefore granted, the judgment of reversal is set aside, and the judgment of the circuit court will be affirmed. It is so ordered by the court.

ANDERSON, C.J., and GARDNER, THOMAS, BOULDIN, FOSTER, and KNIGHT, JJ., concur.

BROWN Justice (dissenting).

Reasons, other than those heretofore stated, occur to me why the conclusion of the majority is erroneous. The first is that it is assumed that there was evidence going to sustain the hypothesis of charge 2; that is, that the brakes were defective. The testimony upon which the appellee and the court rely to sustain the hypothesis is that of the witness England, who appeared on the scene some time after the accident, and that of Dr. Hanna. To quote from appellee's brief supporting the application, England testified:

"I noticed tracks or skidded places on the road. I traced those tracks from where they started to where the car was. It was dug out in the highway when he put on the brakes. There was a skip in the tracks to where the car was. Where it turned over. Right where it turned over the two right hand tires blowed (blew) out. I measured from where the car was to those dug out places-it was 14 steps back to the place. I stepped those off." (Italics supplied.)

Dr Hanna testified: "The brakes on that trip from Marion to Selma and from Selma back to the scene of the accident, responded and worked properly. * * * I just put on the brake. I have been driving an automobile 24 years. I have driven cars at this rate of speed frequently. I did everything that a careful, prudent driver should have done...